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How a Gender Focus Impacts Argentina's Criminal Cases

ARGENTINA / 17 AUG 2022 BY LARA LOAIZA EN

The decision to absolve a group of transgender women in Argentina of drug-related charges has drawn further attention to the impact of the special consideration the courts are paying to gender issues when ruling on some criminal cases.

In late July, a federal judge in Argentina acquitted 18 transgender women of drug trafficking charges. The presiding judge, Sabrina Namer, ruled the women -- who were all once sex workers and who began selling drugs in 2013 -- did not constitute an organized criminal group and that their precarious situation as members of the LGBTQI+ community contributed to their participation in drug trafficking.

Most of the acquitted women were from Peru and they almost all suffered from a range of severe health issues, including HIV. As such, Namer ruled that their contact with drugs was "completely linked to the way in which they worked in prostitution."

Judge Namer criticized prosecutors, forensic experts, and even defense lawyers for referring to the women as "transvestite men" during the case. In her ruling, she also stated that Argentina had a track record of harshly prosecuting transgender people for drug-related crimes.

This is not the first drug trafficking ruling in the country to take gender issues into account. In 2020, another judge granted house arrest to a woman accused of drug trafficking. The court argued her situation as the main provider for her two sons, one of whom had health problems, placed her in a particularly vulnerable situation, and that detention measures have an acute impact on women and their families.

Later, in 2021, a judge acquitted a 63-year-old woman charged with drug trafficking on the basis that she had sold drugs to pay for her son's much-needed surgery.

InSight Crime spoke to Namer to discuss the impact of Argentina's court system taking gender-related issues into account.

InSight Crime (IC): Where did the initiative to apply a gender lens to court decisions come from?

Sabrina Namer (SN): Argentina has what is known as the Micaela Law for cases involving gender violence and femicide, which highlights the need to educate officials on gender issues. It is a state policy that officials, particularly judicial officials, apply when making a ruling.

We have already started developing gender lens training to help address different gender issues related to organized crime.

However, my fear is the misuse or abuse of the gender lens. This [most recent] sentence was based on gender issues, which I believe the case merited. But I am very careful not to trivialize the application of gender in cases that are not really gender-related. Applying this gender perspective is a great responsibility.

IC: Can such a gender perspective be applied equally to all cases?

SN: It is important to recognize that not all cases are the same. Even more so in drug-related cases.

I see many drug cases that are affected by gender issues. In this particular case, the gender issues included discrimination and a lack of opportunities for women who were socially excluded due to their gender. They were deprived of opportunities that they would have had as men. They all had professional or vocational training. In this particular case, there was an issue of discrimination and a failure to acknowledge existing vulnerabilities. And the lack of violence associated with drug dealing in the context of prostitution was considered.

But there are examples where this is not the case. We recently sentenced a lawyer to life in prison after she murdered two clients that were members of a Mexican drug cartel. She was hired by the woman leading the cartel. In this case, the woman’s role within the criminal organization was totally different. Gender meant nothing. There are cases in which women, like men, are leaders of drug organizations.

We also see cases of women who admit to criminal charges and take responsibility for crimes committed by men. Women cover for men, and are also victims of violence. There are also situations of structural inequality that push women to admit to charges and go to jail in order to save the man responsible.

SEE ALSO: Coverage of Gender and Crime

There is also an issue of criminal policy and the need to investigate a woman's mistake in the fight against organized crime. Some women have particular knowledge of gang dynamics: They are witnesses to conversations, they know what happens within the family, of what the men talk about, and what they are going to do. And also, because their children are killed, they are the ones who lose the most in all this. There are no public policies to help them get out of these situations by becoming sources of information.

We see women linked to drugs in very different ways so it is very difficult to give an overarching answer.

IC: In what context does the criminalization of women, particularly trans women, occur in Argentina?

SN: There are lots of cases. Many women are detained in federal prisons for drug dealing -- the very thing I decided to acquit. The particularities of a woman's situation are often not taken into account. In the case I ruled, it was possible to take the peculiarities into account because there were so many women involved. It was unique in that sense.

Perhaps when the crime is a one-off, which the majority are, it is more difficult than in a collective case.

IC: What were the reasons for your decision to acquit the women accused of selling drugs?

SN: Several factors came together in this case. In addition to the fact that they were trans women, they were also all migrants to Argentina due to discrimination in their home countries. Most of them had stories about how their families tried to make them more manly and how they underwent surgeries. So, first of all, in addition to being trans women, they were foreigners.

On top of this was the fact that all of them were very poor because they did not have opportunities to earn a living. This is despite the fact that their families in their home countries were not poor. They were all in precarious conditions, involved in prostitution, living in undignified places, and most had HIV. This series of intersectional factors was considered when making the decision.

An additional factor was how the women were imprisoned. These women engaged in prostitution [and selling drugs] in a well-known area and when the neighbors reported the situation, actions were taken against police officers. To save themselves from this situation, the police officers conducted a kind of raid and brought all of the women into the police station. This is why the case began with 30 people; with the police demonstrating that they were tackling crime.

The drug sales were documented with the case on the police officers. The striking thing about the police case was that it did not move forward despite serious irregularities concerning the police being highlighted. Meanwhile, the case against the trans women did go to trial. No nullities were raised because they made an agreement with the prosecutor to conduct short trials that gave them two-year sentences rather than the possible 20-year sentences. The women decided to admit to the crime, which meant the case involving the policemen could not be investigated.

It's important to see how this case, which has little overall bearing [on drug dealing] was prosecuted. If these women were making a lot of money from selling drugs then there would have been more cases against them. The police allow much more than one thinks. While many trans women are arrested for drug-related issues, drugs are still sold on the streets.

IC: Do you think this ruling is a step towards applying a gender perspective to Argentina's security policies?

SN: A lot of my colleagues wrote me, publicly and privately, acknowledging something that caught my attention. They highlighted the humanity and bravery of the ruling, and many people pointed out that it set a very important precedent. But I am very fearful that the court ruling will be misused, and that tomorrow the court will be full of trials of people who say the only thing they can do is sell drugs for a living.

SEE ALSO: Argentina Spares Mother Who Served as Drug Mule to Save Son

I was very careful to define the parameters of this ruling, so that this would be a justified case that highlighted the exceptional nature of the women's situation. I believe that if discrimination can be demonstrated due to gender, and that, in reality, the impact the crimes committed is relatively minor -- including no violence committed -- then perhaps the criteria for imputing these acts will be reconsidered. I believe that it can be used as a precedent, but I am also sure that the misuse of the ruling could be extremely serious.

IC: What factors would you consider when applying this gender lens?

SN: I think you have to have remember that there are special situations for women and that this is not only applicable for trans women. We also have to be careful because there are also women that could have done something other than selling drugs: You can’t say that one is limited to selling drugs just because they are a young woman. But there is vulnerability when women are alone, are the head of the household, and cannot find work. Then, there a is survival situation at play. This is an institutional policy decision for those who are dedicated to the prosecution of crime. They are writing that we must begin to look for other solutions for these cases because prisons full of poor, foreign women are of no use to us in the fight against drugs. So, I believe that these new approaches have to be institutional. This is beginning to happen.

The institution is also starting to ask whether pursuing vulnerable women really makes any sense. This rarely leads to finding those up the drug trafficking supply chain. Women continue to be poor when they sell drugs; those who get rich are those higher up. The Argentine authorities are reassured by arresting women and, in general, no progress is being made in investigations towards the highest levels of the drug trafficking network.

IC: What more needs to be done?

SN: I think it's important to review the criteria [for pursuing prosecution], and decide whether going after the lowest link in the chain is really effective. More specifically, I believe that beyond awareness of the issue of women as victims of crime, there must be protocols that take into account how these cases are addressed by the various institutions to ask whether what is being done serves as a means of combating drug trafficking at the highest levels.

We must go and change public policy in this regard. Conditions must improve for women, and we must have mechanisms in place to disrupt the gangs with the information they are able to provide.

Most court cases today involve those lower on the drug trafficking chain, while the people higher up pay for lawyers or look for solutions to silence those accusing them. Some serve their sentence but continue their criminal activities. The same individuals are always imprisoned and the same ones always evade investigations. I believe that beyond the gender issue, it is necessary to rethink drug policy. I believe that these failures are demonstrating that what we are doing isn't working.

*This interview transcript has been edited for length and clarity.

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